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2024 DIGILAW 626 (MAD)

P. Rajagopal v. P. Srinivasan

2024-03-08

P.B.BALAJI

body2024
JUDGMENT : P.B. BALAJI, J. Prayer: Second Appeal filed under Section 100 of the Code of Civil Procedure to set aside the judgment and decree dated 03.12.2014 in A.S. No. 143 of 2007 on the file of the Principal Subordinate Court, Salem confirming the judgment and decree dated 04.01.2007 in O.S. No. 70 of 2006 on the file of the I Additional District Munsif Court, Salem. 1. The defendant in a suit for injunction, seeking to restrain him from disturbing the peaceful possession and enjoyment of the plaintiff, is the appellant herein. 2. The parties are described as per their litigative status before the trial Court. 3. The brief facts that are necessary for adjudicating the above Second Appeal are as follows: 3.1. The plaintiff instituted the suit for permanent injunction claiming that the suit property was originally belonging to the father of the plaintiff and the defendant, one Pachiyapillai. According to the plaintiff, the said Pachiyapillai executed a registered Will dated 25.10.1961, bequeathing the suit property amongst other properties to the plaintiff and defendant in common. He has also stated that certain other properties were given to the sisters of the plaintiff and defendant. Even during the lifetime of his father, Pachiyapillai, one brother of the plaintiff and defendant by name, Natarajan was not provided any property under the Will and therefore, the plaintiff and the defendant chose to execute the settlement deed, gifting one property to the said brother Natarajan, absolutely. 3.2. According to the plaintiff, the plaintiff and the defendant orally divided the properties prior to 1980 and under the said oral partition, the suit properties were allotted to the share of the plaintiff' and thereafter, the plaintiff has been in possession and enjoyment of the same. However, in 2005, the defendant with a view to knock off the suit property started to disturb the plaintiff's possession and also threatened him with demolition of the old dilapidated building. With these allegations, the suit for permanent injunction was filed. 4. The defendant filed a written statement, admitting the Will of the father, but denying the oral partition concerning the suit properties. In fact, it is the specific case of the defendant that there was an oral partition, under which the properties facing Devendrapuram Main Road alone was orally partitioned and the suit properties continued to be in the joint possession and enjoyment of the plaintiff and defendant. In fact, it is the specific case of the defendant that there was an oral partition, under which the properties facing Devendrapuram Main Road alone was orally partitioned and the suit properties continued to be in the joint possession and enjoyment of the plaintiff and defendant. The defendant claimed to be in possession and also collecting rents from the tenant who is occupying the portion of the property. The defendant denied the allegations of threat and disturbance allegedly caused to the plaintiff and prayed for dismissal of the suit. 5. The trial Court decreed the suit, finding that the defendant was not in possession and the oral partition pleaded by the plaintiff appeared to be true and allowed the suit as prayed by the plaintiff. 6. Pending the First Appeal by the defendant, the First Appellate Court permitted the defendant to file an additional written statement on the ground that the suit for bare injunction without a prayer for declaration was not maintainable. However, the Court found that the oral partition was proved and the plaintiff was entitled to maintain the suit for injunction, without a prayer for declaration and consequently, also confirmed the findings of the Trial Court. 7. Aggrieved by the concurrent findings rendered by the Courts below, the defendant is on Second Appeal. 8. At the time of admitting the above Second Appeal, the following substantial question of law was framed on 18.10.2023: “Whether the suit for bare injunction without the prayer for declaration is maintainable, especially when the defendant denies the exclusive title of the plaintiff?” 9. Subsequently, on 31.01.2024, after hearing the learned counsel on both sides namely, Mr. P. Jagadeesan and Mr. Mukund, learned Senior Counsel for Mr. T.S. Vijayaraghavan, leaned counsel for the respondents, I have framed the following additional substantial question of law: “Whether or not the valid and convincing documentary evidences adduced by the appellants and also in the light of the specific admission made by the plaintiffs son (First respondent) himself in the suit O.S. No. 524 of 2000 (Ex.B.17), the appellants proved that there was no oral partition in the year 1980 in respect of the suit property and the Appellant also is in joint possession of the suit property?” 10. Apart from hearing the submissions advanced by the learned counsel on either side, I have also gone through the pleadings, oral and documentary evidence as well as the judgments of the Courts below and I have also heard the learned counsel on the substantial questions of law. 11. Admittedly, the parties are brothers and it is the specific case of the plaintiff that under a Will of their father, properties were jointly allotted to the plaintiff and defendant. Further, there was an oral partition prior to 1980 as per the plaintiff's version and under the said partition, the suit properties were allotted to the plaintiff and consequently, the plaintiff has been in physical possession and enjoyment of the same and in view of the alleged interference attempted by the defendant, the suit was filed for a relief of permanent injunction without any declaratory relief. 12. The learned counsel for the appellant, Mr. P. Jagadeesan, would mainly contend that the suit for bare injunction was not maintainable when the defendant has specifically denied the exclusive ownership of the suit property at the hands of the plaintiff, by categorically and specifically stating that there was no oral partition as alleged by the plaintiff in respect of the suit properties. The learned counsel for the appellant would also take me through the documentary evidence filed on the side of the appellant/defendant to evidence and establish that the possession of the suit properties was also with the defendant and not exclusively at the hands of the plaintiff. 13. The learned counsel would also place reliance on the decision of the Hon'ble Supreme Court in the case of Anathula Sudhakar vs. P. Buchi Reddy (Dead) by LRs. and Others, AIR 2008 SC 2023, where the Hon'ble Supreme Court has held that a prayer for declaration would become necessary if the denial of title by the defendant or challenge to the plaintiff's title raises a cloud on the title of the plaintiff to the property. 14. Per contra, the learned Senior Counsel appearing for the respondents would submit that the defendant, having admitted that there was an oral partition, but only in respect of other properties, could only lead to the irrefutable conclusion that all the properties of the family had been divided as there could be no piece meal oral partition. 14. Per contra, the learned Senior Counsel appearing for the respondents would submit that the defendant, having admitted that there was an oral partition, but only in respect of other properties, could only lead to the irrefutable conclusion that all the properties of the family had been divided as there could be no piece meal oral partition. Further, he would also state that the oral partition was proved by the plaintiff and it was even justified as to why the larger extent of 2200 sq. ft. being the suit property was allotted to the defendant and 1100 sq. ft. was only allotted to the plaintiff in the above property only in order to set off the advantage to the defendant by way of excess allotment, the suit property measuring 1100 sq. ft. was given to the plaintiff. The learned counsel would also state that the silence on the part of the defendant without claiming any partition for past several years would also only strengthen the case of oral partition pleaded by the plaintiff. 15. The learned Senior Counsel would also state that even though the defendant had stated that he was collecting rents from tenants from the suit property, he has not produced any evidence in that regard. In order to substantiate the same, even according to the defendant, in his oral evidence, he has stated that he is not residing in the suit property for more than 15 years and that the defendant was in possession till about 1990. 16. Ex.A4 and Ex.A5 are certified copies of sale deeds executed by the plaintiff in favour of the third party purchasers, Ponnusamy and Pushpa. In the said documents, it is stated by the plaintiff that the plaintiff had orally entered into a partition with his brother, the defendant. The Courts below placed heavy reliance on the said documents to hold that the oral partition had been proved. On perusing Ex.A4 and Ex.A5, it is seen that the properties that have been sold by the plaintiff under said documents Ex.A4 and Ex.A5, were situated at Devendrapuram Main Road and not concerning the suit property. 17. The Courts below placed heavy reliance on the said documents to hold that the oral partition had been proved. On perusing Ex.A4 and Ex.A5, it is seen that the properties that have been sold by the plaintiff under said documents Ex.A4 and Ex.A5, were situated at Devendrapuram Main Road and not concerning the suit property. 17. The learned Senior Counsel would vehemently contend that when the defendant had categorically admitted that there was an oral partition between the plaintiff and the defendant and the same was also mentioned in the sale deeds executed by the plaintiff in the year 1983 itself, it would only confirm that there was an oral partition as pleaded by the plaintiff and there could not have been a partial oral partition. 18. The learned Senior Counsel for the respondents would place reliance in the case of Kesharbai alias Purshpabai Eknathrao Nalawade (Dead) by LRs. and Another vs. Tarabai Prabhakarrao Nalawade and Others, 2014) 4 SCC 707, where the Hon'ble Supreme Court held that it is settled principle of law that once a partition in the sense of division of right, title or status is proved or admitted, the presumption is that all joint properties were proved or divided and that the presumption of joint family properties cannot be relied once the partition (of status or property), whether general or partial, is shown to have taken place in a family. 19. He would also place reliance on a decision of this Court in the case of S. Krishnamurthy v. S. Venugopal and Others, 1996 (1) LW 663 , where this Court held that one of the defendant supported the plaintiff's case by admitting that the property was purchased out of joint exertion and labour but however, did not admit that there was a joint family property and in the said circumstances, such defendant, if really had a right in the suit property, would not have attested the mortgage deed where the adversary party claimed absolute title and such conduct of the defendant would amount to estoppel. This judgment has been pressed into service by the learned Senior Counsel for the respondents, since the defendant is a signatory to the said sale deed in Ex.A4, executed by the plaintiff where there is a reference to an oral partition. 20. This judgment has been pressed into service by the learned Senior Counsel for the respondents, since the defendant is a signatory to the said sale deed in Ex.A4, executed by the plaintiff where there is a reference to an oral partition. 20. On going through the decisions on which reliance is placed by the learned counsel on either side and the ratio laid down by the Hon'ble Supreme Court as well as this Court, the mere fact that the defendant joined execution of Ex.A4 sale deed would not lead to a presumption that there was an oral partition in the suit property. Admittedly, the property which is the subject matter of Ex.A4 was a different property. The properties which were dealt with by the plaintiff under Ex.A4 and Ex.A5 were not properties that were subject matter of the Will executed by the father in favour of the plaintiff and defendant. The properties which were bequeathed to the plaintiff and the defendant jointly under the Will of the father became the joint and absolute property of the plaintiff and defendant. However, insofar as the other properties which were not subject matter of the Will, including the properties covered under Ex.A4 and Ex.A5 and properties settled by the plaintiff and defendant on their brother were all inherited from the father and therefore, they cannot be treated on par with the properties bequeathed under the Will of the father. 21. The defendant fairly admits even in the written statement that there was an oral partition in respect of the properties that were not covered under the Will and insofar as the properties which were bequeathed to the plaintiff and the defendant jointly under the Will, they continued to be joint possession and there was no partition of the said properties. 22. The defendant has also filed documents not only before the trial Court in Ex.B1, which is a prosecution notice issued by the Salem Corporation in the name of the defendant dated 21.04.1980, House tax receipts (11 Nos.), Saving Pass Book, Premium Notice issued by the LIC, Coimbatore Division, Notice issued by the Bank of Madurai, Acknowledgment receipt in respect of receiving the family card in the name of the defendant, property tax receipt, Notice issued by the Salem Corporation and Election identity card. These documents were marked as Ex.B2 to Ex.B10. These documents were marked as Ex.B2 to Ex.B10. Ex.B2 series, no doubt, House tax receipts, 11 in number are standing in the name of father Pachiyapillai. Even at the appellate stage, the plaintiff was permitted to exhibit additional documents viz. Ex.B11 to B17 which are again documents to show that the defendant was in possession, even after the alleged oral partition between the plaintiff and the defendant as claimed by the plaintiff. 23. Unfortunately, the Courts below having not looked into these material and relevant documentary evidence adduced by the defendant. Even otherwise, when the plaintiff pleads oral partition, it is the burden on the plaintiff to establish the same. The plaintiff has not been able to produce even a shred of evidence to show that the oral partition was acted upon and that the plaintiff had mutated the revenue records in respect of the suit properties in his favour. 24. On the contrary, the defendant has clearly shown that even after the alleged oral partition, the defendant has been in possession of the suit property. Therefore, the plaintiff has miserably failed prove the oral partition. In fact, in the plaint curiously the plaintiff has not even given exact particulars of date of oral partition. He merely states that the plaintiff and the defendant orally divided the suit property prior to 1980. Despite the specific pleading, the Courts have misconstrued the pleading and proceed on the basis that the oral partition took place in the year 1980. Thus the Courts below have clearly fell in error in adverting themselves judiciously to the pleadings and oral and documentary evidence on record. Even assuming for a moment, without admitting that the defendant had failed to prove physical possession of the suit property or a portion thereof or even taking into account, there is no admission that he was not residing the suit property for 15 years (at the time of letting in oral evidence), even then that the plaintiff has not established any oral partition and thus then the defendant can only be said to be in joint and constructive possession of the suit property and therefore, the plaintiff cannot be entitled to the relief of permanent injunction. 25. 25. Even applying the ratio laid down in Anathula Sudhakar's case, referred herein supra, when the defendant has specifically denied the oral partition, the plaintiff could not have proceeded with the suit for bare injunction and ought to have amended the plaint and sought for declaratory relief and on this score also, the suit merely filed for permanent injunction was not maintainable. 26. For all the above reasons, the Second Appeal is allowed and all the substantial questions of law are answered in favour of the appellant. Consequently, connected Miscellaneous Petition is closed. There shall be no order as to costs.